62 d Congress } 
Isi Session f 


SENATE 


\ Document 
] No. 100 


RECALL OL JUDGES 


ADDRESS 


DELIVERED BY 

HON. T. J. \yALSH 

OF HELENA, MONT. 

BEFORE THE 

WASFIINGTON STATE bAr ASSOCIATION 
SPOKANE, WASH., JULY 28, 1911 





PRESENTED BY MR. MYERS 
August 18, 1911.—Ordered to be printed 


WASHINGTON 

1911 










■< 1 


* 



\ 

\ 


# 



•i* 



RECALL OF JUDGES. 


[Address delivered by Hon. T. J. Walsh, of Helena, Mont., before the Washington 
State Bar Association, Spokane, Wash., July 28, 1911.] 


The public discussion of the subject of the recall of judges has 
served a^ain to bring into the limelight how widely men differ in 
their estimate of the capacity of the people for self-government. 

. Not a httle of it has been more or less acrimonious. The Chief Exec¬ 
utive of the Nation finds it an innovation of so pestilential a nature 
as to justify the exclusion from membership in the sisterhood of 
States of a Territory whose people, preparatory to their entry into 
the Union, frame a constitution recognizing the principle. It has 
been even advanced that such a constitution would operate to char¬ 
acterize the government to come into being under it as other than 
republican, the form which the United States, under their funda¬ 
mental law, guarantee to every State in the Union. If this view be 
sound, it follows that it is incumbent upon the Federal Government 
to interfere in some manner in the case of any existing State that 
shall adopt this reform, as it is denominated by its friends, until the 
obnoxious principle is eradicated. 

The overwhelming influence of the profession of the law in every 
department of the Government has often been noted. It monop¬ 
olizes the judiciary, as a matter of course. Of the 92 members of the 
National Senate 66 have been admitted to the bar. The lower 
House will show as high a proportion. The President is a lawyer, 
as were all except two of his predecessors for 50 years. Every 
member of his Cabinet but one is a trained lawyer. In a less marked 
degree, perhaps, but nevertheless as by far the predominating class, 
are the affairs of the States guided and directed by the members 
of the legal profession. Three of the four governors who have been 
elected by the people of Montana since her admission into the Union 
came from its ranks. It is beside the present purpose to consider 
why this is so. Its obvious significance is that lawyers give con¬ 
crete expression to the convictions of the public on political ques¬ 
tions, however influential they may be in its development. A 
general concurrence in thought, at least, must be assumed. 

There is very little reason, accordingly, to fear the general accept¬ 
ance of any innovations in the machinery of government that does 
not commend itself to the intelligent and progressive members of the 
bar. In the matter of the method of choice or dismissal of judges it 
is reasonable to believe that the usual deference paid to their views 
on related questions would be heightened to such an extent as to 
leave in their hands practically a veto upon any plan proposed. This 
responsibility carries with it a corresponding obligation to be informed 

3 





4 


RECALL OF JUDGES. 


upon aiw change seriously agitated. It occurred to me, following 
these reflections, that you might listen with some patience to a brief 
disquisition upon the recall in its application to the judicial office. 

It is nowhere proposed to make the principle of the recall specially 
applicable to judges, but in the general assault upon the system it is 
insisted that at least an exception should be made in the case of such 
officers, and it is in connection with them particularly that it is urged 
tliat it offends against the requirement of the Constitution that the 
government of each State shall be republican in form. As to this 
‘Claim there is not in it sufficient of substance on whicli to hang any 
thing that can be dignilied as argument. To advance it is to excite 
distrust of any accompanying comment on the expediency or wisdom 
of the proposed departure from the })revailing order. In the ])res- 
entation of this feature of the subject it is usually coupled with the 
initiative and referendum, the group of related innovations, it is said, 
operating to (haracterize any scheme of government of which they 
are essential parts as democratic in form as contrasted vdth a republic. 

In this connection profuse reference is made to comments of 
various statesmen of revolutionary times, warning or denunciatory 
in character, on the evils and perils of unrestrained democracy and 
on the necessity of an independent judiciary. It is ventured that 
the clause of the Constitution appealed to was inserted as a safe¬ 
guard against the dangers that inhere in the democracy, one of 
which is the destruction of the independence of the judiciary, a 
result which, it is assumed, will ensue when the judges are subject 
to be recalled by the people who elect them. Until this ingenious 
theory was advanced it was quite generally, it might be said uni¬ 
versally, believed that the word ^‘republican,'’ as employed in the 
clause in question, was used by way of contrast to “monarchical.” 

It was dread of pretensions to kingship which might be set up in 
some of the States that inspired the provision to which reference has 
been made, if the testimony of history is of any consequence whatever. 
It is companion to that part of the last clause of the ninth section of 
the first article prohibiting Congress from granting any title of nobility, 
and the corresponding provision of the tenth section, forbidding the 
States from making any like grant. Referring to those provisions 
conjointly, Cooley says: 

The purpose of these is to protect a union founded on republican principles and 
composed entirely of republican members against aristocratic and monarchial inno¬ 
vations. (Cooley on Const. Lim., 28, 6th ed.) 

Whatever persuasiveness there might be in the line of alleged 
reasoning at which the conclusion is reached that the systems adverted 
to affect a State government with a fatal antirepublican character 
must appertain to the initiative and referendum, not to the recall. 
The former secures what has been appropriately called direct legisla¬ 
tion by the enactment of a law in the one case and its nullification in 
the other. Therein lies the vice, as it is claimed, of the system, the 
essential characteristic of a government republican in form beinc^, 
it is said, that its laws are made by delegates or representatives of tlie 
people, not by the people themselves, except as they are so repre- 
spted. The recall, on the contrary, has no reference to direct legisla¬ 
tion. It has its field only in the case of representatives chosen to 
make the laws, to construe them or to administer them. It can oper¬ 
ate only in a government which is republican in form. It is coupled 


RECALL OF JUDGES. 


5 


in the public mind with the initiative and referendum only because 
it is the purpose of both systems to secure a higher degree of faithful¬ 
ness on the part of the legislative representatives. 

By the former the people undo what their representatives have 
done amiss, as they believe, or enact such measures as they have 
been remiss in omitting to sanction. The primary purpose is not to 
supplant but to supplement the representative system that it may 
be more truly representative. The incentive to procure legislation 
by corrupt measures is largely withdrawn, it is ar^ed, when the 
product must run the gantlet of popular approbation to which it 
may be subjected by the referendum. Indifference to the demands 
of the people in the matter of legislation often enforced by platform 
pledges, will vanish, it is contended, when the certainty confronts 
the legislator that they will be secured anyway through the initai- 
tive. By the recall he is displaced with a view to obviating the 
necessity of a resort to the initiative or referendum or as a penalty 
for compelling it. 

However, then, the system of direct legislation may encroach upon 
the essential character of a republican form of,government, the recall 
is not amenable at all to the strictures of its critics in that direction. 
It is sufficient to say, in passing, that the Supreme Court of Oregon 
in an opinion written by Judge Bean, since appointed United States 
district judge, in which all of his associates concurred, has held that 
the argument is unsound and untenable even as addressed to the ini¬ 
tiative and referendum. (Kidderly v. City of Portland, 74 Pac., 710.) 
It would be surprising if any court did reach any other conclusion in 
view of the prevalence of the town-meeting system throughout New 
England at the time of the adoption of the Constitution, a feature 
of the State government which, still persisting, has been extolled as 
‘‘the wisest invention ever devised by the work of man for the perfect 
exercise of self-government and for its preservation.’’ 

It apparently did not occur to the fathers of tlie Constitution that 
those States in which the people were permitted to legislate directly 
in respect to certain affairs, where the method of a pure democracy 
constituted a part of their system of government, were, by reason of 
that fact, ineligible to membership in the Union. They were all 
admitted, yea, invited to come in, with such local governments as 
prevailed among them. By the very act of admitting their Repre¬ 
sentatives in Congress that body determined that such existing 
governments were republican in form; and so with respect to the 
systems devised by the people of the new States as they were severally 
taken into the Union. In Luther v. Borden (7 How., 1) the Supreme 
Court of the United States said: 

WTien the Senators and Representatives of a State are admitted inco the councils 
of the Union, the authority of the government under which they are appointed, as 
well as its republican character, is recognized by the proper constitutional authority. 

• The extreme to .which the people of a State may go in forming a 
scheme of local government without transgressing against that pro¬ 
vision of the National Constitution which admonishes them that it 
must be republican in form may be gathered from the fact, a cir¬ 
cumstance involved in the case last above referred to, that Rhode 
Island, unlike the others of the original States, adopted no new con¬ 
stitution pursuant to the recommendation of Congress upon the 
adoption of the Declaration of Independence, but proceeded under 


6 


EEC ALL OF JUDGES. 


the charter granted by Charles the Second in 1663 with only such 
changes as were necessary to adapt it to their condition and rights 
as an independent State. It took a rebellion to change the anti¬ 
quated system which was recognized for over half a century, what¬ 
ever its vices and weaknesses may have been, as at least republican 
in form. It will be impossible to condemn any State constitution 
as antirepublican if a parallel can be found for the supposed obnoxious 
feature in the constitution of any one of the 13 original States as it 
existed at the time the Federal Government came into existence. 
So the United States Supreme Court said in Minor v. Happersett 
<21 Wall., 162), using the following language: 

No particular government is designated as republican; neither is the exact form to 
be guaranteed in any manner especially designated. The guaranty necessarily 
implies a duty on the part of the States themselves to provide such government. All 
the States had governments when the Constitution was adopted. In all the people 
participated to some extent through their representatives elected in the manner 
especially provided. These governments the Constitution did not change. They 
were accepted precisely as they were, and it is therefore to be presumed that thej^ were 
such as it was the duty of the States to provide. Thus we have unmistakable evidence 
of what was republican in form within the meaning of that term as employed in the 
Constitution. 

Let this test be applied to the recall as it affects the judicial office. 
At the time the Constitution was adopted, in no instance was either 
the governor or any of the judges elected by the people. The latter 
were uniformly either appointed by the governor or elected by the 
legislature. In New Hampshire, Massachusetts, Connecticut, Rhode 
Island, Pennsylvania, and South Carolina they could be removed 
by address of that body, a majority vote sufficing in Rhode Island 
and Pennsylvania. Bear in mind, by address—not by impeach¬ 
ment. While impeachment proceedings contemplate definite charges 
and a trial, neither the one nor the other is requisite in the case of 
removal by address. A simple vote ends the official career of the 
individual against whom it is successfully leveled. This method 
of terminating the official life of the incumbent of a judicial office 
was borrowed from the English system, under which, since the revo¬ 
lution of 1688, judges have been and still are removable by a majority 
vote of each house of Parliament. In Rhode Island the tenure was 
even more precarious, a majority of all the members in joint com¬ 
mittee sufficing to accomplish the retirement of a judge. The 
constitution of that State, adopted in 1842, superseding the old 
colonial charter, provided that— 

Each judge shall hold his office until his place be declared vacant by a resolution 
of the general assembly to that effect. 

The ancient patent under which the colony was originally gov¬ 
erned gave to the inhabitants ‘‘the power to place or displace officers 
of justice as they or the greater part of them shall by free consent 
agree to.’^ 

Confessedly, Pennsylvania and Rhode Island came into the Union 
enjoying a “republican form of government.’' So that to maintain 
tlmt a constitution embodying the recall applicable to the judicial 
office is antirepublican we are driven to the conclusion that a State 
under whose fundamental law judges are elected by a majority vote 
of the legislature and are removable by a majority vote of tlie legis- 
lature is republican in form, while that State whose judges are elected 
by the tote of the people and who are removable by a majority vote 


RECALL OP JUDGES. 7 

of the people is not. That phase of the question may be dismissed. 
The question is exclusively one of political expediency. 

As suggested before, it has never been seriously contemplated to. 
make the recall applicable solely to judges, as might be gathered 
from some of the discussions in which the question has been involved. 
The inquiry presents the advisabihty of a general recall system and 
then an exception of judges from its operation. A very brief ref¬ 
erence to the subject in its general aspect must suffice here. As to 
all purely administrative offices the question is not perhaps veij 
important. It must be admitted that as to all such the system is 
ideal except in the contemplation of those who regard the people as 
fickle, vacillating, ^‘unstable as water,’’ and likely to embroil them¬ 
selves in constantly recurring elections by continued resort to this 
method of relief from fancied grievances. Such an argument might 
be quite forcible as applied to the people of San Domingo, Venezuela, 
or Guatemala, but it is a reform to the adoption of which the people 
of^the United States are invited—not those of Latin America, not a 
race of turbulent fanatics like those that crowded the court of Herod, 
nor a primitive people fike those that made ^‘unstable Athens heave 
her noisy seas.” 

It is exceedingly difficult to understand why it is good business 
policy in every great corporation to retain, when it can, the right to 
dismiss its secretary, auditor, or treasurer at will, but is impolitic 
for the people to retain the right to dismiss a county clerk or a State 
treasurer when they see fit to do so. A business man or corporation 
is sometimes forced to enter into a long-time contract in order to 
secure or retain the services of a valued servant, but it is avoided, 
for obvious reasons, whenever unnecessary. Usually such contracts 
bind both parties. The public servant, performing similar services, 
has his employer bound, but he may escape the obligations of his 
service, at any time, by resigning. As to the legislative office, it 
affords such a check upon a career of corruption, regrettably not 
infrequent, particularly in municipal councils, as ought to commend 
it generally with respect to such. In respect to such offices, a course 
of conduct extending over a considerable period of time may bring 
conviction of guilt to all intelligent observers that can not be resisted, 
and yet evidence sufficient to expel be entirely unavailable. 

And why should a member who has violated the pledges under 
which he was elected, repudiates the measures to secure the passage 
of which he was delegated, and outrages by his votes the convictions 
of his constituents on great public questions, continue, against their 
will, as their alleged representative ? In a neighboring State a mem¬ 
ber was lately elected to the higher branch of the legislature for a 
term of four years at an election at which the choice of a United 
States Senator was the paramount, not to say absorbing, question 
before the voters. He was returned largely because of his profes¬ 
sions of allegiance to the popular candidate for that office, to whose 
cause he publicly and privately declared himself devoted. He 
voted for the local favorite for 10 days or thereabouts, and then 
deserted to become the leader of the forces of his antagonist, a man 
of great w^ealth, who had the support of a giant corporation believed 
to be the master of the political destinies of the State, for whose 
legislative program the recreant member votes with striking con- 
sistance. He was overwhelmed with remonstrances from his con- 


8 


KECALL OF JUDGES. 


stitiients, and though they did not affect his course he confided to 
some of his friends that he was opposed to the recall because if it 
prevailed he would be one of its first victirns. 

If it should be regarded as wise to punish the error of judgment 
on the part of the people of his county in electing him by denying 
to them the right of recall, why should the interests of the rest of 
the people of the State be imperiled by his retention ? 

What ground is there for making any distinction in reference to 
those public servants upon whom devolve the judicial function ? The 
expression ^‘public servants’’ is used advisedly in connection with 
judges upon the authority of the Supreme Court of the United States, 
which said, in Luther--y. Borden: 

Judges * * * must enforce such (constitution) as the people themselves, whose 
judicial Serviants they are, have been pleased to put into operation. 

It is the theory of our Government that the whole body of sover¬ 
eign people, as though they were one sovereign, desire that justice 
should be administered and lawlessness punished. They employ 
and depute judges to perform the work for them. It is a specula¬ 
tion quite in keeping with the sacred character of the judicial office 
that regards the occupant of it, in a special manner, as the minister 
of divine justice, dispensing to each, with such feeble light as finite 
intelligence and judgment may, such measure as may be his due. 

If we were to conceive his appointment to come from the Infinite 
'yVisdom, we must likewise conceive that the recall awaits his first 
lapse from rectitude. An error in judgment would be overlooked, 
not attributable to sloth or persistence in vices that cloud the 
reason. The decay of the faculties from advancing age or illness 
would call it into immediate action. The upright judge would 
have no occasion to fear its exercise until it would be merciful to 
employ it. Theoretically it is ideal, particularly in the case of judi¬ 
cial officers, if we assume that the majority of the people have the 
intelligence and virtue to use it aright. At the time the experiment 
in self-government was first tried on this continent they were not 
considered as possessing either in sufficient degree to make a wise 
choice of judges possible or likely by popular vote, and accordingly, 
as stated, in not one of the 13 original States at the time of the 
adoption of the Federal Constitution were judges elected by the 
people. 

Now, in 34 of the 40 States the judges are chosen by popular 
election. These include Georgia, which went to the elective system 
in 1798, the imperial State of New York, which followed in 1846, and 
North Carolina, which adopted the popular method recently. The 
overwhelming sentiment of the people of the United States is that 
the people of the States, respectively, are competent to choose their 
judges, and the experience of a century has fully justified that confi¬ 
dence. Irving Browne, in a review of the New York Court of Ap¬ 
peals, published in the Green Bag in 1890, said: 

I have given the names of more than 100 judges, with particulars of many of them, 
nearly all of whom w^re first nominated by the people. I believe that under a system 
of appointment by the governor this test would not have been equaled in merit and 
distinction, and I point to it as a standing refutation of the argument that the people 
are not fit to name their judges. 

The Federal system of appointment for life, as distinguished from 
the State system of election for limited terms, is commended in many 


EEC ALL OF JUDGES. 


9 


quarters as immeasurably superior. However it may be in other 
parts of the country, it is observed that in our section, at least, the 
Federal judges are- selected very largely from those whose talents 
were discerned by the people, and who had by them been elected 
to high judicial position. Vandevanter in Wyoming, Field, Sawyer, 
Ross, and De Haven in California, Bean and Wolverton in Oregon, 
Hawley in Nevada, Hunt in Montana, and Rudkin in Washington, 
are of this class. There is not an argument that has ever been 
advanced against the recall of judges that is not equally forcible when 
applied to the election of judges by the people in the first instance. 

The main contention, about which the argument invariably 
proceeds, is that the recall would rob or tend to rob the judge of his 
independence, impelling him constantly, in his official acts, to court 
the favor of the people by consulting their hopes concerning litiga¬ 
tion before him and conforming his judgments to the desires of the 
majority. That is exactly the line of argument that has been vainly 
pursued for over a century to stem the tide of democracy as it involves 
the judicial office. Leonard Jones in the course of some comments 
in the American Law Review, in disparagement of the idea expressed 
by Mr. Browne, above quoted, said: 

The worst thing, however, about the elective system is not the fact that it affords 
unworthy men the chance to obtain judicial office by purchase or other corrupt prac¬ 
tices, but that it necessarily to a greater or less extent destroys the independence 
of the judges. 

What chance is there that a judge who is shortly to seek a reelection by the people 
will uphold the law and justice in a case where the popular clamor is against law and 
justice? 

Wdiat chance, indeed, unless he be a man and not a caitiff. With that kind of a 
judge the argument has added force as it is directed against the elective system, 
because that kind of a judge is likely to solace himself with the reflection that so far 
as the recall is concerned it may not be invoked against him anyway, while if his 
term is expiring and he seeks reelection, he is up against it to a certainty. Moral 
courage is a quality cardinal in character in a judge. He is called upon to exercise 
it in the daily discharge of his duties. He is fortunate, indeed, if he is not obliged 
repeatedly, in his official career, to brave the enmity of powerful interests whose 
activity is more to be feared than an outburst of passion upon the part of a community 
or State against an upright public official who faithfully discharges his duty as he 
sees it. 

Even a Federal judge, unless he be free from every honorable 
ambition, or has reached the topmost round; is not exempt from these 
trials, as the testimony of Judge Purdy before the Sugar Trust 
investigation committee would seem to indicate. 

It would be futile to attempt to devise a system that would sustain 
the spineless creature, Mr. Jones assumes, very mistakenly, every 
judge to be. His pusillanimity is inveterate, and it would be wiser to 
trust to the people’s finding him out. Pilate got his place by appoint¬ 
ment and was in no way dependent upon the suffrages of the Jews to 
keep it. The desirability of independence in the judiciary all will 
concede, and obviously no unnecessary test, in addition to those 
inherent in the office, ought to confront the judge, lest there be found 
those whose moral stamina, sufficiently vigorous under other condi¬ 
tions, should be found unequal to it. I am constrained to believe 
that in respect to litigated controversies in which the people at large 
take a decided interest, particularly those which give rise to or excite a 
class feeling, or are believed to have a political aspect, the evil is more 
likely to be that the side whose expectations are disappointed will 
assign the candidacy of the judge for reelection in explanation of the 


10 


EECALL OF JUDGES. 


result, if he is a candidate, rather than that the outcome is hkely to be 
influenced by any such consideration. 

If the contest is between some wealthy and powerful litigants on 
the one side and someone supposed to represent or whose cause 
evokes the sympathy of the so-called laboring class on the other, the 
unfortunate judge assumes the risk of encountering the accusation of 
the hasty and unthinking among the multitude that he is owned by 
the ‘‘interests’^ and looks to them to renominate or reelect him, or, 
on the other hand, that he is a truckling demagogue, bidding for the 
votes of the mob. As a general rule, subject to very rare exceptions, 
the general body of the people harbor no such sentiment and listen 
incredulously to the imputations made as the vaporings of an unsuc¬ 
cessful suitor. But let any such conviction obtain general lodgment 
in the minds of men, and a situation arises that is not only to be 
deplored, but which calls for action, for at the very foundation of 
orderly government must be found the highest confidence in the 
administration @f justice in the courts. Undermine that and the 
whole edifice of representative government totters, and there remains 
no alternative but resort to a government of force. 

Herein lies, in my judgment, the weakness of the Federal judiciary. 
The judge is believed to be utterly independent of the people. He 
does not owe his appointment to them, nor does he look to them for 
advancement. No reason can ordinarily be conceived why he should 
incline his judgment to their supposed will in any case, and he is 
accordingly exempt from any suspicion in that direction. If he 
decides a case in such a way as to meet popular approval, the incident 
is regarded as the natural result of the equities of the case, and so 
speedily forgotten. But when the case turns in the other direction, 
the opportunity to attribute to sinister influences its outcome is by 
no means wanting. Setting aside the idea of corruption in its 

g reater form or in its milder manifestations, as disclosed in the 
wayne impeachment proceedings, it would be idle to attempt to 
disabuse the public mind, in this day, of the notion that the great 
interests, insidiously perhaps, but none the less effectively, exercise 
a ^tent influence in the selection of Federal judges. 

^hile this belief prevails, a suspicion affecting his predilection is 
easily engendered by a course of decisions, whether right or wrong, 
by a Federal judge favoring such interests. The social aspect is 
not an unimportant one. By the methods of his selection and the 
character of his duties he is apart from the general mass of men who 
naturally assign as his associates and confidants the more opulent 
and influential, whose prejudices he imbibes and whose views he 
the more readily adopts. These are some of the considerations 
which have given rise to the belief prevalent in some quarters that 
the Federal courts are a haven for the big corporations that are 
more or less inclined to rapacity. 

The Federal system certainly serves, in the very highest degree 
possible, the independence of the judges—that is, it makes them 
independent of the people. The system can not be regarded as per¬ 
fect, however, if the national courts fail to win and maintain the con¬ 
fidence of the great mass of citizens—unless the people feel that those 
courts are theirs, the judges thereof their judges, doing their work. 
One distinguishing merit of the recall as applied to judges is that it 
operates to permit the restoration of public confidence in the court 


RECALL. OF JUDGES. 


11 


presided over by a judge against whom it was invoked. Why should 
a judge, guilty of continual intoxication, for instance, be permitted 
to continue in office, passing upon grave questions affecting the lives, 
liberties, and fortunes of citizens, until his term expires or he is 
removed by the slow and uncertain process of impeachment ? A day 
is too long for him to sit bringing to the duties before him a mind inert 
or befuddled from drink. . 

The supreme court of my State granted a new trial in Finl^'-^, 
Heinze (28 Mont., 548), because the undisputed evidence showed 
that the judge who tried the case, while hearing it, being more or 
less steeped in liquor, trafficked through a lewd adventuress with 
one of the parties to the action. Some chapters from the recent 
judicial history of this State might serve as well to illustrate the 
utility of a system through which could be secured the prompt elim¬ 
ination of a judge whose conduct was such as to excite deserved 
public reprobation. Had not the erring justice who fled before the 
wrath of this association, kindled at the disclosure of his intrusting 
to counsel for one of the parties in a suit before him, a corporation 
of great wealth, the preparation of the opinion of the court, volun¬ 
tarily relinquished his seat, the people of Washington would have had 
abundant cause to be thankful had they been able to retire him 
under a recall. 

Independence in the judiciary is undoubtedly a quality much to be 
desired. But we may pay too high a price to secure it. Undoubt¬ 
edly we do when we keep on the bench the obviously unworthy and 
unm judge lest that class, small, as I insist, at best, in whom fear of 
their political future is the ruling passion might be swerved from the 
path of right. Independence is not a characteristic essential alone 
in the judicial servant of the people, as might be imagined from the 
discussion of the subject before us. All public officers are required 
to exercise it in varying degree in the proper discharge of their duties. 
The governor of the State, the President, is supposed to be equally 
deaf to what is called popular clamor.’’ They enforce the law 
against rich and poor alike, high and low. It was this quality which 
endeared Andrew Jackson to the American people and gave to 
Theodore Roosevelt a popularity perhaps no less widespread. A 
prosecuting attorney will find daily exercise for the same virtue. It 
made Folk and Hughes national characters. 

And yet I can not think of an officer against whom the recall might 
be more appropriately invoked than a recreant prosecutor who 

g ursues the outcast and winks at the crimes of the high and mighty. 

[e might, of course, be deterred by selfish political motives, from 
proceeding against lawless strikers who shed innocent blood or 
wreck property, but I should rather fear his being appalled by some 
franchise-grabbing plunderbund or domineering industrial corpora¬ 
tion that finds gain in operating in violation of law. The youth of 
this State are being taught by Prof. Smith, holding the chair of 
political science in its rising university, that the ‘independence of 
public officials which our forefathers were so anxious to secure has 
been found to be a fruitful source of corruption.” “A realization of 
this fact,” he says, “has been responsible for the introduction of the 
recall system under which the people enforce official responsibility 
through their power to remove by a vote of lack of confidence.” 


12 


RECALL OF JUDGES. 


Our political forefathers were wise men, patriotic men. Amidst 
the wreck of the old order, involving social relations as well as polit¬ 
ical institutions, they studied to excellent purpose the history of gov¬ 
ernment and the contributions to literature of those who had exam¬ 
ined into its philosophy. Ihey confessed their first attempt at 
organizing a national system a failure. The various State constitu¬ 
tions they hurriedly threw together, as a rule, speedily gave place to 
more carefully planned and consistent systems. A review of these 
early charters would reveal not a few notions concerning the proper 
province of government now universally discarded, some of them 
abhorrent to the general sense of our age. 

But one thing among many in the science of government which 
they did learn and know is that all power is liable to be abused and 
that there is a fatal tendency in most men in whom it is invested 
to use it tyrannically. They recognized that there was reposed in 
judges a vast power and that in the nature of things it must be 
exercised without fear of personal responsibility, as in the case of 
administrative or executive officers who were required to answer 
for any abuse of the power with which they might be charged. They 
had in mind the career of Jeffreys and the provisions made by the 
English people in the act of settlement against the recurrence of such 
a type on the bench, whereby judges were removable by the vote of 
the Lords and Commons. 

Accordingly, in the case of 9 of the 13 States, as their govern¬ 
ment was administered at the time of the adoption of the Federal 
Constitution, judges were made removable by address, special pro¬ 
vision being made for the case of that class of officials, usually in 
addition to a general provision for the impeachment of all offices. 
As a general rule, a two-thirds vote was necessary, but in Rhode 
Island and Pennsylvania a majority, as heretofore stated, sufficed. 
The two methods of removal were provided because impeachment 
was available only in the case of a culpable violation of law. High 
crimes and misdemeanors only warrant impeachment under the 
Federal Constitution. Besides impeachment implies a formal 
accusation, a trial and proof. 

The evidence may be hard to get, the offense not grave enough 
to be a crime and yet serious enough to condemn a judge at the 
bar of intelligent public opinion. It is a trite saying that a virtuous, 
law-abiding man does not become a criminal in a day—that character 
is a growth and the loss of it a decay. 

As Wendell Phillips put it, ‘^A man may be unfit to be a judge 
long before he is fit for the State prison.’’ Thereby hangs an inter¬ 
esting tale. Massachusetts had from the beginning the dual method 
of removing judges, by impeachment and by address. It was in the 
very heat of the abolition movement that one Edward Greely Loring 
held, at Boston, at one and the same time, the office of probate judge, 
under the authority of the State, and the office of United States 
commissioner. By virtue of the last-named office, acting under the 
provisions of the fugitive-slave law, he had been instrumental in 
returning to his owner a runaway slave, the attending circumstances 
being exasperating to the people. A monster petition was presented 
to the legislature to remove him. 

The great orator spoke for the petitioners and demonstrated to a 
certainty that the legislature had the power to remove Judge Loring, 


RECALL OF JUDGES. 


13 


though he had committed no crime, without hearing any testimony 
and without giving him any notice of the proceedings. He made clear 
how tenaciously the people of Massachusetts had clung to the power 
to which he appealed since the Revolution. He told of the effort to 
amend the provision of their constitution in question in the famous 
constitutional convention of 1820, among the members of which 
were Justice Story, Chief Justice Shaw, Daniel Webster, and many 
other brilliant men. A majority of the members of the legislature 
elected sufficing to remove a judge under the constitution, it was 
proposed by a committee, of which Judge Story was chairman, to 
increase the number of votes requisite to two-thirds, the report 
insisting that the existing provision tended to impair the independ¬ 
ence of the judges. 

Webster asserted that proceeding without notice was against 
natural right. The subject was debated with profound ability by 
many of the great lawyers present, but none disputed the unlimited 
power of the legislature, or offered a suggestion that the feature in 
question be expunged. The convention voted down the amendment, 
but submitted to the people an amendment providing for notice, 
which they rejected. And so this provision of the constitution of 
1780 remains unchanged to this day. It reads as follows: 

• All judicial officers duly appointed, commissioned, and sworn, shall hold their 
offices during good behavior, excepting such concerning whom there is a different 
provision made in the constitution; provided, nevertheless, the governor, with consent 
of the council, may remove them upon the address of both houses of the legislature. 

Notwithstanding the requirement of participation of the governor 
and council in the formal act of removal, both Story and Shaw 
declared that judges in Massachusetts held their offices at the will of 
the majority of the legislature, and so it appeared in Loring’s case. 
For the legislature, having voted the address for his removal, and the 
governor neglecting to act, another governor was promptly chosen 
who did remove him. 

The considerations actuating the people of Massachusetts in incor¬ 
porating this provision in their constitution for the summary removal 
of judges have been regarded as persuasive by those of 15 other 
States, namely, North Dakota, South Dakota, California, Kansas, 
Mississippi, North Carolina, Nevada, Ohio, Rhode Island, South 
Carolina, Virginia, Washington, Wisconsin, West Virginia, Utah, and 
Illinois, though in most a two-thirds vote is necessary and notice to the 
judge attacked is essential. In New York judges are removable on 
recommendation of the governor by vote of two-thirds of the senate. 

The conviction seems to be quite general that the people should 
have some means other than impeachment to rid themselves of an 
unfit judge. The futility of resort to that method was demonstrated 
years ago. It has never been resorted to in England since the fail¬ 
ure of the Hastings trial. Political considerations are likely to be 
paramount or, at least, are apt to exercise a decided influence in 
the deliberations of legislative bodies. The members are not required 
to be trained lawyers nor judges skilled in the analysis of evidence. 
An abortive effort was made to impeach the Montana judge, whose 
evil reputation is perpetuated after his death by the report of the 
case above referred to. 


14 


EECALL OF JUDGES. 


In 1902, Judge Samuel Chase, an Associate Justice of the Supreme 
Court of the United States, was tried by the Senate and acquitted, 
though Schouler says: 

He had made himself odious by his harsh behavior and irascible, overbearing man¬ 
ners. He went rampant on his spring assize, trying the important offenses com-' 
mitted within his circuit more like a frocked politician who seeks revenge than the 
minister of law and justice. He ranted before the grand juries as though in a mass 
meeting. 

The heated political atmosphere, the clumsiness of the manage¬ 
ment of the case, and the patriotic public services of the accused 
are assigned as reasons for the result. In the Swayne case the 
defendant admitted that a railroad being in the hands of a receiver 
appointed by his court, he traveled, without expense to himself, in a 
private car belonging to the company, from the State of Delaware to 
Florida and from there to the Pacific coast and return, the connect¬ 
ing lines generously handling the car gratuitously. Yet he was 
acquitted. 

The wisdom of some provision for the removal of judges other than 
by impeachment being conceded, the question arises. Where shall it 
be lodged; with the people direct or vdth the legislature ? Arguing 
in favor of his resolution to amend the Massachusetts constitution on 
the occasion mentioned, Justice Story said the judge in that State— 

does not hold his office by the tenure of good behavior, but at the will of a majority 
of the legislature, and they are not bound to assign any reason for the exercise of 
their power. This is the provision of the constitution, and it is only guarded by 
the good sense of the people. 

He had no fear, he added, of the voice of the people when he could 
get their deliberate voice; but he did fear the legislature. 

A powerful individual who has a cause in court which he is unwilling to trust to 
an upright judge may, if he have influence enough to excite a momentary prejudice 
and command a majority of the legislature, obtain his removal. 

Prescient man! Out of the profundity of his wisdom and learning 
he saw as through a glass, darkly, the Illinois Legislature with its 
“jack pot'’ a hoary tradition. “I have no fear of the voice of the 
people.” And no other honest and upright judge need fear that 
voice. It is idle to talk about the judge being called upon to take 
the hustings to defend his decisions. If he can successfully defend 
his character and his conduct, his decisions will take care of them¬ 
selves. The people will not require that he be right in his opinions, 
but that he be honest and decent in his life. 

It might be said that there is more occasion for a recall provision 
in Massachusetts, where the judges hold during good behavior, than 
in jurisdictions where the tenure is for a limited time. But the tend¬ 
ency is to protract the terms of judges, particularly of the higher 
courts. In New York the justices of the court of appeals are elected 
for 14 years; in Pennsylvania the term for the corresponding office 
is 21 years; in Montana 6. The shortest of these terms is a long 
time to tolerate a judge who needs removing. The decrepitude of 
age may come upon him unexpectedly early in life. Illness may over¬ 
take him and even render him unappreciative of his own infirmity. 
A Massachusetts judge was removed for such a cause. With the 
recall it is comparatively unimportant how long the term is. 


RECALL OF 4:UDGES. 


15 


One of the grounds of complaint against the elective system is the 
brevity, as a rule, of the terms, in consequence of which it is claimed 
the bench has no attraction to the best talent at the bar. The term 
could ordinarily be safely lengthened with a recall provision. In 
Oregon it is proposed to extend the term of members of the legislature 
to SIX years, but make them subject to recall at any time. Its most 
ardent advocates admit that it will be a long time until the recall 
enters the field of the national organization, but if any State is 
disposed to try the experiment, it is with confidence asserted that, 
upon reflection, no reason will appear why judges should be excepted 
from its operation. 





















